The uncertain legal future of South Africa’s endangered rhinos

On November 26, a South African judge upheld a lower court’s decision to lift the government’s ban on domestic trading of rhino horns, which has been in place since 2009. This decision is significant because only 29,000 rhinos remain in the world with 20,000 (or 80%) of those rhinos residing in South Africa. Conservation activists fear that this decision will accelerate the extinction of rhinos.

The issue was previously brought to court last November by private rhino breeders John Hume and Johan Kruger. The breeders argued that the government’s ban on the rhino trade violated their Constitutional rights including their right to freedom of trade and deprivation of property. The breeders also argued that the government was required under the Promotion of Administrative Justice Act to personally consult with them before imposing the ban. Finally, they argued that the ban was irrational and unlawful. Ultimately, the court invalidated the ban on the grounds that there was insufficient notice of the ban as required by Section 99 of the National Environmental Management Biodiversity Act (NEMBA). More specifically, the government was obligated to give notice of the ban “in at least one newspaper distributed nationally, or if the exercise of the power may affect only a specific area, in at least one newspaper distributed in that area” and “invite members of the public to submit to the Minister, within 30 days of publication of the notice in the Gazette, written representations on, or objections on, or objections to, the proposed exercise of the power.” The court disagreed with all of the other points with the exception of a possibly legitimate deprivation of property claim.

While the government has appealed the ruling, effectively keeping the ban in place until the Supreme Court of Appeal issues its judgment, prospects are grim. The government’s violation of the NEMBA seems quite clear. However, if the Supreme Court were to overturn the ban on the basis of notice, the South African government could still impose a new ban by following the correct notice procedures and inviting public comments beforehand. Thus, the future of a domestic ban on the rhino horn trade remains to be seen.

However, there is also uncertainty on the international level. South Africa is a party to the Convention on International Trade in Endangered Species (CITES), which is a multilateral treaty regulating the trade of cross-border wild animals and plants. South Africa is set to host the next CITES Conference this year, and it is rumored that the country plans to submit a proposal to legalize the international trade in rhino horn. The argument for lifting the ban is that a legal trade would increase the supply of rhinos, thus keeping prices low and minimizing the incentive to poach. For instance, Hume and Kruger are the largest rhino farmers in the world with 1,200 rhinos at Kruger Park. They raise rhinos to sell to zoos, to be shot by trophy hunters, and to harmlessly harvest their horns, which grow bit by bit. They believe that barraging the market with a legal supply of rhino horns would take pressure off wild rhinos. However, opponents argue that this theory relies on a naïve and simplistic view of economics that fails to take into account the complexities of endangered species trade. Opponents believe that making the trade legal would instead cause demand to rise and lead to increased poaching. Some even think that increased demand could actually expand the illegal trade. Furthermore, opponents are not satisfied with legalizing the trade because they do not want rhino horns to be seen as a commodity.

With this lack of agreement among those concerned for rhinos, it is up to CITES to make a decision and reinforce its relevance in the international sphere. While participation in CITES is voluntary, the Convention is legally binding. However, it does not include a specific mechanism of international enforcement for compliance. CITES primarily relies on each member to enact domestic legislation to comply with CITES provisions. At a Conference that is held every three years, the Standing Committee hears reports from countries to discuss progress that has been made to combat poaching, crack down on illegal trade, and initiate demand reduction programs. In recent years, the biggest market for rhino horns has been Vietnam, where rhino horn is believed to have medicinal uses. In reality, rhino horn is made of keratin, which is the same material in fingernails and hair. While Vietnam has appropriate legislation in place to implement CITES, control of the internal wildlife trade remains lax. Vietnam has a fine for illegally possessing rhino horn, but the value of the horn is much higher than the fine and it is believed that there is involvement of Vietnamese diplomats with criminal syndicates. As a result, at the last Conference in 2013, there was a call for Vietnam to develop a strategy to reduce demand for rhino horn or face trade sanctions from other members. In the past, the use of trade sanctions within CITES has appeared to be effective. Consumption of rhino horn used to be much more widespread in Asia, but the threat of sanctions has resulted in significant steps by governments to prohibit the use of rhino horns in medicines or release results of clinical trials showing its lack of effectiveness in medicine.

For these reasons, the upcoming 2016 CITES Conference is important. South Africa is expected to propose legalizing the international trade of rhino horn, and the Standing Committee will hear progress reports from Vietnam. Although there is a lack of agreement on the best method to protect rhinos, CITES should not lift the international ban on the trade. Lifting the ban would conflict with the entire point of CITES, and it would do nothing to reduce the perception of rhino horn as a commodity. Fortunately, it seems unlikely that CITES would lift the ban because most countries oppose legalizing the trade and prefer demand reduction programs and tougher law enforcement measures. If South Africa were to propose legalizing the trade, it would need a two-thirds majority vote, which is very difficult to obtain. Instead of lifting the ban, CITES should continue to focus its efforts on persuading Vietnam’s government to help curb domestic demand, and South Africa should continue its anti-poaching methods. Education and public awareness campaigns can make a difference, albeit a small difference. Some recent polls show that there has been a significant drop in the kinds of ailments that people in Vietnam believe rhino horns can cure. The overall global trend has been a decrease in the use of wild animal products, and this should be an encouraging signal.